7 posts from April 2007

April 28, 2007

Texas Attorney Bob Kraft's P.I.S.S.D. Blog (Personal Injury, Social Security Disability), a blog to which I subscribe, posted a list of links to some very useful resources for information on Child Safety Seats. Thank you, Bob, for the posting. I'm relisting the links here:

A bogus study released today by the national Chamber of Commerce claiming to rank so-called “anti-business” state legal systems is yet another baseless attack on the nation’s civil justice system in its campaign to eliminate corporate accountability for wrongdoing and negligence.

“This latest propaganda is a made-up survey primarily of corporate lawyers earning millions of dollars defending their CEOs from being held accountable,” said Jon Haber, chief executive officer of the American Association for Justice. “The Chamber will stop at nothing to destroy the civil justice system in America, which protects the rights of consumers, employees, and shareholders against corporate wrongdoing and negligence.”

As the largest lobby in the country and a front group for corporations seeking to evade accountability for wrongdoing and negligence, the national Chamber of Commerce has led the effort to eliminate access to justice for Americans.

The American Association for Justice today released “The Ten Worst States to Get Sick or Injured In” providing sobering examples of how the national Chamber’s efforts and those of big corporations seeking to evade accountability for wrongdoing and negligence puts corporate greed over public good.

“The Ten Worst States to Get Sick or Injured In’’ shows what America is in store for if the national Chamber and powerful corporations get their way. “Efforts by front groups like the national Chamber to pass laws that allow corporate CEOs to evade accountability for wrongdoing and negligence have eliminated many Americans’ access to justice,” Haber said. The 10 Worst States To Get Sick Or Injured In:

1. Don't Get Hurt in Alabama.It doesn’t matter how seriously an individual is injured, Alabama law limits restitution for every injury or death caused by the government to what’s available under workers comp. If a local governmental entity is held responsible, no matter how great the loss, restitution is limited to $100,000 per person for injury or death, or $300,000 if more than one person is injured or killed in the same incident – no matter how many people were affected. So the more people hurt, the less restitution they receive. Alabama Code §§ 41-9-70, 11-93-2, 11-47-190.

2. Alaska’s Big Freeze.In Alaska, restitution for “noneconomic” losses is limited to the greater of $1 million or the injured person’s life expectancy in years multiplied by $25,000. That may not sound bad until one remembers that people can live 50 years or more after they are injured, and these injuries can include something as serious as the permanent loss of urinary and bowel function. Fifty years of tending to the necessary medical needs – let alone the initial treatment – would not come close to being covered by this limited amount. Alaska Statutes § 09.17.010; State v. Johnson, 2 P.3d 56 (Alaska 2000).

3. Colorado’s Rocky Mountain Low.Restitution for victims injured by a Colorado state employee is limited to $150,000. If two or more people are injured at one time, restitution is limited to $600,000, no matter how many people must divide the amount. In such cases, regardless of need, no one person can recover more than $150,000. For many victims of serious injury, this would never even cover the basic hospital costs. Colorado Revised Statutes § 24-10-114.

Colorado's legislators have also imposed arbitrary limits on the amount of restitution that can be awarded to medical patients, injured through no fault of their own. No matter the facts of the case, how badly the patient is injured, or how much the medical care and rehabilitation has cost in the past or will cost in the future, compensation is strictly limited to $1 million. Colorado Revised Statutes § 13-64-302(1)(b).

4. Florida’s Gator Bite.Florida has consented to allow its citizens to hold the state and its employees accountable – up to a point. Restitution in such cases is limited to $100,000 for one person and a total of $200,000 per incident, no matter how many people are injured or the severity of the harm. Personal losses exceeding $100,000 "may be reported to the Legislature," which may or may not do anything at all. Injured individuals can always hope the state agency involved bought liability insurance. If not, there is no recourse. Florida Statutes § 768.28(5).

In 1988 state legislators took away judges’ and juries’ right to determine cases of babies with brain injuries injured during birth. If expecting parents want to ensure a potential birthing center can be held responsible for its mistakes, they are forced to search out a “non-participating provider” in Florida’s bureaucratic “FBRNIC” Plan. But more often than not, expecting parents have no idea they could be signing away their child’s future in the often-confusing documents piled upon them during a prenatal visit. Florida Statutes §§ 766.301 - .316

5. Illinois Hospitals Run on the Cheap.If you get injured as a result of negligence by a state employee or agent – like a physician working at a state-operated hospital – restitution will be limited to $100,000 no matter how serious the injury or how expensive the recovery. Illinois Statutes Chapter 705 § 505/8(d).

6. Don’t Get Sick in Indiana.Legislators imposed an arbitrary limit of $1.25 million for injured patients’ restitution, no matter how bad the injury or how much it will cost to provide future care. Although future care for a badly injured person – like a baby with brain damage – can last for decades and cost millions of dollars, Indiana healthcare providers (in reality, their insurance companies) are liable for only the first $250,000. That’s a sweet deal for the insurance companies, which pass the rest of the bill on to the state taxpayers. Ind. Code Ann. § 34-18-14-3.

A tragic example of this limit’s impact can be found in the experience of Frank Cornelius, a lobbyist who helped convince Indiana lawmakers to adopt it. After helping pass the limits, Cornelius was the victim of four separate acts of negligence in the course of routine surgery and post-operative care. He wrote a poignant article in 1994 stating that, at age 49, he was confined to a wheelchair, was in constant pain, his marriage ended, and he had amassed medical bills of more than $5 million. Due to the limits, his restitution was limited to $500,000.

7. Oklahoma’s Not OK for Injured Patients.Oklahoma legislators have imposed a complicated system on injured patients, which resembles a game of poker more than it does access to justice. For example, a guilty party can make an “offer of judgment” before trial – if they offer to settle the case, forego trial, and, if the injured patient will accept their offer, allow a judgment for that amount to be entered against them. If the patient declines the offer of judgment and proceeds to trial, and does not secure a judgment for at least 1½ times the amount offered before trial, any noneconomic compensation is limited to $300,000. Oklahoma Statutes, Title 23, § 1- 1708.1F-1.

8. Texas: Dead on Arrival.Legislators decided to let the families of dead patients fend for themselves. Even if a family has lost its breadwinner, if they sue for restitution, they are limited to an amount of $500,000 (to be adjusted to track the consumer price index). The limit applies to each patient killed, no matter how many medical centers, doctors, or other healthcare personnel were responsible for his/her death. Texas Civil Practice and Remedies Code § 74.303.

9. Virginia May Be for Lovers, but It's Not for Injured Children.Virginia has a separate system for cases where babies are brain damaged during birth. Such injuries can result from oxygen deprivation or mechanical injury. Babies who suffer them can be permanently disabled, and may need assistance with daily living activities, up to and including round-the-clock care for life. In some cases they need care long after their parents have died. The bureaucratic “VBRNIC” Program is charged with providing lifetime care for injured babies, related expenses and compensation for a child’s lost earnings. Once a baby is injured, the state’s Workers’ Compensation Commission decides whether the baby will be covered, and the claim is never seen by a court unless the Commission’s decision is appealed. Once the Commission decides to cover a baby, the child and his/her family are prevented from ever holding the healthcare provider responsible for the baby’s condition, or for any harm coming to the mother.

Not only does this treatment go against the basic respect for human life, but it also forces an undue burden onto state taxpayers. The program’s expense is borne not by those who caused the injury, or even by their insurance companies. It is borne by every Virginian who purchases any kind of liability insurance – even homeowner and automobile insurance. What’s worse is that the program costs more to operate than the tort system it replaced, juries and all. Virginia Code §§ 38.2-5000 to -5021.

10. West Virginia, Almost Heaven? In West Virginia, as long as a healthcare provider has malpractice insurance with at least a $1 million limit, no victim of his/her negligence can recover restitution of more than $500,000 for a "noneconomic" loss. However, "noneconomic" is defined to include a number of conditions that can have major economic consequences. Such losses include permanent, substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or a permanent physical or mental injury that leaves the victim unable to care for himself/herself independently and perform "life sustaining" activities. West Virginia Code § 55-7B-8.

As the world's largest trial bar, AAJ (formerly known as the Association of Trial Lawyers of America) promotes justice and fairness for injured persons, defends the constitutional right to trial by jury, and strengthens the civil justice system through education and disclosure of information critical to public health and safety. With 52,000 members worldwide, AAJ provides lawyers with the information and professional assistance they need to serve clients successfully and protect the democratic values of the civil justice system. Visit http://www.justice.org

April 16, 2007

Using Cruise Control on slippery roads is fraught with danger. The website truthorfiction.com relates the following:

"We checked with the departments of transportation for Minnesota, Wisconsin, and Washington State as well as visiting several websites of other states and the consensus is clear: Don't use cruise control during winter conditions such as when it is snowing or icy or under other slippery conditions such as when it is raining."

April 15, 2007

My South Dakota colleague, John R. Hughes, a plaintiff's attorney and, dare I say, fine plaintiff's advocate, represented a woman in a serious gynecological medical malpractice case. Due to the many, many misrepresentations during closing arguments by the defense attorney representing the doctor and facility, the jury came back in favor of the defendants within one hour. The verdict was appealed and the Supreme Court of South Dakota granted a new trial based on the outrageous conduct of the defense attorney. Click here to read the facts of the case and full decision in LUCILLE SCHOON and JOHN SCHOON, a husband and wife, Plaintiffs and Appellants v. THOMAS L. LOOBY, M.D., an individual, and SIOUX VALLEY CLINIC, formerly known as Obstetrics and Gynecology, Ltd., a South Dakota corporation, Defendants and Appellees. SUPREME COURT OF SOUTH DAKOTA, 2003 SD 123; 670 N.W.2d 885; 2003 S.D. LEXIS 151 which delineates the outrageous conduct of defense counsel including references to "Asserting Personal Opinion and Knowledge of a Witness," "Misstatement of Fact," Misstatement of the Law" and "Using Inflammatory Statements."

For example, defense counsel repeatedly referenced this lawsuit as playing the lotto or powerball or rolling the dice in an attempt to inflame the jury. At one point during his closing argument, he misrepresented the facts by saying that one of the defendants, Sioux Valley Clinic, was a non-profit organization owned by the public, i.e., inferring, of course, that the jurors will ultimately be the ones that are out of pocket for a jury award against SVC.

It is important, in my opinion, to note that lawsuits are brought by people who are injured and seek compensation for their injuries from the responsible party. I have represented literally 100s of injured persons none of whom has ever said that the ultimate settlement, no matter how large, made it all worthwhile. No one person would ever willingly trade their health and quality of life or go through the pain of injury and rehabilitation for money. When someone is injured, they are made less than whole physically, mentally and financially and the negligent party must be held responsible for returning that person to their prior state to the extent possible.

The Public Citizen's Consumer Justice Project publishes an incredible blog called Consumer Law & Policy Blog which has articles related to consumer safety, dangerous products, class actions, consumer lending and much, much more. The blog caught my eye with a recent posting which discusses Dangerous Kitchen Stoves -- in essence, there are 15-20 million lightweight stoves currently in use in the United States which pose a danger "because they are so light-weight, have a tendency to tip over and maim and kill consumers" with the potential of causing great personal injury to their users. I urge you to view the informative Consumer Law & Policy Blog.

April 12, 2007

A skier has been awarded $14 million after being paralyzed in a fall from a ski jump at the Summit at Snoqualmie.

In February 2004, Kenny Salvini of Lake Tapps fell 37 feet from a jump at Central Terrain Park and maintained by Ski Lifts, Inc.

A King County jury on Friday found that the operator failed to take safety into consideration at its Summit West terrain park and therefore was partially responsible for the crash.

The full jury award was for about $31 million, but that amount was decreased to $14 million after calculating "the comparative fault" of Salvini and "the inherent risk of the sport," Salvini's Tacoma lawyer, Jack Connelly said.

April 05, 2007

The U.S. Department of Labor has a great website advising both employers and employees in the area of overtime pay. The FLSA Overtime Calculator Advisor provides information and links to guide you.

Here's a snip-it from their introduction page: The Fair Labor Standards Act (FLSA) requires that covered, nonexempt employees in the United States be paid at least the federal minimum wage for each hour worked and receive overtime pay at one and one-half times the employee's regular rate of pay for all hours worked over 40 in a workweek. FLSA overtime pay is due on the regular pay day for the period in which the overtime was worked. The overtime pay requirement may not be waived by agreement between the employer and the employee. The overtime pay requirement cannot be met through the use of compensatory time off (comp time) except under special circumstances applicable only to state and local government employees.